Pro: Court rulings affirm mandated health insurance is constitutional

Posted: Friday, February 19, 2010

By Stewart Jay

SEATTLE - Does Congress have constitutional power to require Americans to carry health insurance? Undoubtedly yes.

According to numerous Supreme Court rulings, Congress has broad power to enact programs to deal with economic issues of national magnitude. Health care surely rises to that level. Consuming more than 17 percent of the economy and rising, health-care costs create not only human tragedies but the potential for national economic disaster.

Although one may argue over the best policy for health care, the power of Congress to deal with the issue comprehensively is grounded in seven decades of Supreme Courtdecisions.

Congress already mandates a major health insurance program: Medicare. Americans effectively prepay their retirement health insurance through taxes. Taxpayers also must contribute to Social Security, and those funds pay for both retirement benefits and relief to the disabled.

At least two solid constitutional bases give Congress the power to mandate health insurance. The first is its expansive power over interstate commerce. The second is Congress' essentially unlimited ability to spend taxes based on income.

With its commerce powers, Congress can directly regulate businesses operating across state lines. Congress also may control local activities - such as growing marijuana for personal use - that it believes frustrate the achievement of national goals.

Congress may well conclude that controlling health costs at the local level demands a federal solution.

In 1944, the Supreme Court declared the insurance industry to be under the regulatory power of Congress because the business inherently involved interstate commerce. Justice Hugo Black wrote that "perhaps no modern commercial enterprise directly affects so many persons in all walks of life as does the insurance business."

On the same basis, Congress has passed many laws regulating the provision of health care and employee benefits.

One might wonder where were conservative critics of congressional power when their allies used the Commerce Clause to enact the federal ban on "partial-birth abortions" - outlawing a rare surgical procedure?

The most common argument against insurance mandates is that, unlike other federal regulations of economic activities, Congress is penalizing "inactivity." This is glib wordplay. When millions of Americans - whether by necessity or a willingness to risk self-insurance - are allowed to live without insurance there are staggering economic costs to the nation. Inaction is action when, predictably, virtually every person will need healthcare and someone must pay for it.

Hospital emergency rooms cannot refuse to treat the uninsured. When the ill or injured person cannot pay, the billions in high-cost emergency care are borne by the rest of society. And preventive care is discouraged.

Congress has ample evidence that insurance mandates are essential to controlling healthcare costs while assuring universal coverage. Universal coverage spreads the risks throughout the entire population.

Since 1935, the Supreme Court has struck down only two federal laws as outside the Commerce Clause while upholding dozens. A 1942 case sustained a law penalizing a farmer for not selling a few hundred grains of wheat on the market, but rather consuming it at home in violation of federal limits.

The two cases overturning federal regulations could not be more different than the current healthcare bills. One voided a federal ban on possessing firearms in a school zone. The other struck down a law creating federal liability for sexual assault against women. Both were aimed at crimes involving no economic acts or direct connections to interstate commerce.

By contrast, everything about health care and insurance is commercial and inexorably spills across state lines.

Even if Congress' power over commerce does not suffice, its ability to tax and spend can do the same. Since 1935, Congress has been empowered by the Supreme Court to tax and spend for any national purpose.

In concept, the insurance mandates before Congress are nothing different than lowering the age of Medicare eligibility to birth, paid for by taxes.

 Stewart Jay holds the William L. Dwyer Chair in Law at theUniversity of Washington in Seattle and is the author of theforthcoming book "Mortal Words: A History of the U.S. Constitution." Readers may write him atUW LAW, William H. Gates Hall, Seattle, Wash.98195.